January 1, 2010
Solis Acts on Workplace Safety
The Washington Post is reporting on some recent, aggressive moves by Department of Labor Secretary Solis on workplace safety. Many of her actions seem to be moving away from OSHA's previous stress on cooperation with employers. There also appears to be a serious fear among employers that the Clinton-era ergonomics rules will be revived, but it's unclear what if any action is occurring on that:
Solis made a splash in October when OSHA slapped the largest fine in its history on oil giant BP PLC for failing to fix safety problems after a 2005 explosion at its Texas City refinery.
Garnering less attention, she just finished hiring 250 new investigators to protect workers from being cheated out of wage and overtime pay. She also started a new program that scrutinizes business records to make sure worker injury and illness reports are accurate. And she is proposing new standards to protect workers from industrial dust explosions - an effort the Bush administration had long resisted. . . .
Labor Department spokesman Jaime Zapata said the idea of helping businesses understand the rules remains an important part of the agency's strategy, along with stepped-up enforcement. Solis plans to hire 100 new OSHA inspectors next year. . . .
The massive fine against BP certainly caught the public's attention, but other businesses are also paying a steep price for violating safety rules. Two months into the new fiscal year, OSHA has already cited six companies for "egregious" violations that carry the highest penalties. There were only four such egregious cases in all of the previous year.
Solis said her agency this year will tackle 90 new rules and regulations next year. One change would give workers more information about how their pay is computed. Another would make employers disclose whether they sought advice from anti-union labor consultants.
December 28, 2009
Becker's Nomination "Referred Back" to White House
The Washington Post is reporting that Craig Becker's nomination to the NLRB (among five other nominees to different agencies) was "referred back to the White House for reconsideration." It's unclear to me how significant this move is. The Post includes the six under a list of nominees who were "rejected," but it appears that they could be renominated, based on the following quote:
No formal vote was taken, but the six nominees who were "returned to the White House" for reconsideration and possible renomination "ran into opposition," said Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.).
If anyone else has a better idea of what's going on or what might happen, please post a comment or e-mail me. Given that the NLRB nominees are usually packaged together you wouldn't expect this to be the end of Becker's nomination, but who knows. If his nomination is gone, it might spell trouble for the rest of the nominees. And if that happened, then the two-member Board issue only gets more relevant.
Thanks to Rebecca Hamburg and Russ Runkel for filling in more info. It seems that the problem is Sen. McCain's hold on Becker's nomination. Under Senate rules, nominations not acted on at the end of a session essentially "die" and can't be acted on again unless they are formally renominated. However, the Senate can adopt a unanimous consent agreement that waives this rule and permits further action without renomination. But the Senate refused to do so with Becker and the others. The upshot is that Becker could get renominated, but unless there's a way to break McCain's hold on him it may not matter.
Hat Tip: Barry Hirsch
December 27, 2009
Employer's Brief in New Process Steel
The opening brief in New Process Steel has now been filed and you can click on the following link to Download New Process Employer Brief. This is the case through which the Supreme Court will address whether two-member NLRB decisions are valid. From part of the summary of argument:
This case invokes three cardinal principles of statutory construction: Words and clauses in a statute cannot be ignored; each of them should be accorded its ordinary and natural meaning. Conflicts that arise between words and clauses must be resolved in a way that harmonizes them without diminishing the force or meaning of any of them. And, each word and clause must be considered in its context so that no meaning is lost by unnaturally narrow focus.
Application of these principles to Section 3(b) of the NLRA, as amended by the Taft-Hartley Act, leads to the conclusion that the NLRB is authorized to decide cases so long as at least three members are present in a “group” that has been delegated any or all the powers of the Board by the whole Board. A vacancy on the Board only, as distinct from a delegee group, will not deprive the Board of its authority to decide cases unless the vacancy or vacancies deprive the Board of a quorum of at least three members, because three members must be present “at all times.” In contrast, a delegee group that is duly authorized by the Board may act if two members, i.e., a majority or a two-member quorum, agree. When there are only two members on the Board itself, however, there is no Board, no operative authorized delegee group, and no authority to issue decisions. By this formula, all of the words count and none tyrannizes another. Giving meaning to each of the words and phrases in this setting eliminates any ambiguity and leads to a rational operating construct for the NLRB. . . .
Moreover, since the enactment of Taft-Hartley, the NLRB has abided by the minimum three-member requirement for action by the delegee group. Board members and executives have articulated the point over many years. Unrelated federal boards and commissions similarly have refrained from acting when their membership fell below their statutorily authorized numbers. By contrast, no agency has embraced the view offered by the OLC and Board in this case because the Board and the OLC’s theory defies common sense, as well as the plain language of the Act.
I'll try to post the other briefs as they become available.